BROKERS, SHIPPER, AND PEARL HARBOR…”AT DAWN THEY SLEPT”
WHY IT MATTERS: Billboard attorneys are targeting freight brokers and shippers as their next prey, many of whom are oblivious and unprepared to defend.
HOW DO WE KNOW: Because they are telling us. Because they are doing it. Because they are preparing.
A recent conference of the billboard lawyers included sessions with the following topics:
-“Holding Brokers and Shippers Liable: From Theories of Recovery to Key Depositions to Preemptive Motions”;
-“Duty of Brokers”;
-“A History and Overview of Broker and Shipper Cases-Evolving Case and Trial Strategy”;
-“Winning Demonstrative Evidence in Broker and Shipper Cases”
Why worry, right? Does this really mean anything? They are just courses.
Consider this--beginning in 1931, the final exam of the Japanese Imperial Naval Academy included the same question. “How would you carry out a surprise attack against Pearl Harbor?”
Maybe this time, we will learn. Prepare to defend.
Let’s learn from the lesson we missed more than 75 years ago. Rather than sitting still in the water, unprotected, and oblivious to the pending attack, brokers and shippers have the opportunity—and the existential need—to do something.
WHAT IS THE THREAT: Lawsuits against brokers and shippers arising from truck accidents are about to escalate. Exponentially. The billboard lawyers, not satisfied with the current trucking insurance limits, seek to inflate their gains by dragging the broker and shipper of the load into the suit.
This means that brokers and shippers will be scrutinized as to their selection of carriers. Unsafe carrier can mean exposure for the shipper or broker. Potentially a nuclear verdict or, more common, a nuclear settlement.
And this applies to trucking company with brokerage operations. Hey—if you broker loads, you’re a broker.
While there has been legal defenses to brokers liability, the cases are mixed. The law unsettled.
Plaintiff attorneys are looking to strike in the fog of legal uncertainty. The seek to leverage the undetermined status of the law into a large settlement. “Sure, broker, maybe you’re right. But if you’re wrong,….”
THINK ABOUT IT: If you are deposed in a claim for shipping with or brokering to an unsafe carrier, what are you going to say was the effort you made to vet them?
“Well, they had authority and insurance.” OK, at least you made sure they met the bare minimum requirements. And under some cases that may be enough. “May”. And per other cases…
“We did a credit check.” Right. That’s got a lot to do with safety. What else you got?
Uh,…
So how are you going to explain shipping with or brokering to a carrier with a conditional or unsat rating, high accident rate, and safety scores that reek of systemic failures?
SO WHAT CAN YOU DO: The short answer is “something”. This is more than many brokers and shippers do now.
-Review the carriers—have a review or criteria to determine the safety of the carrier you are entrusting to carry freight amongst the motoring public.
-Establish standards—set levels of safety, scores,…for the carriers you use.
-Include in contracts—put qualitative safety standards in your shipping contracts.
-Monitor carriers—have “regulars” to whom you broker? Monitor safety KPI’s on an ongoing basis.
Impractical? Maybe. But I once had a client who found out from a shipper that they had been downgraded to “conditional” before they even got the letter from the FMCSA.
With the current focus of the Plaintiff’s attack, you can’t afford to just load and forget.
BOTTOM LINE: Brokers and shippers are in the crosshairs. Inaction or obliviousness can be fatal to your business. The attack might not be at dawn, but it is coming.